Prevention of Corruption Act, 1988 – the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, the vital ingredients, necessary to be established to procure a conviction for the offences under consideration. The evidence on record in this case is not sufficient to bring home the guilt of the appellants. As such, they are entitled to benefit of doubt.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CORAM: HON’BLE MS. JUSTICE SUNITA GUPTA
Date of Decision: 23rd May, 2016
DINESH CHAND GUPTA ….. Appellant Through Mr. D.N. Goburdhan and Mr. Vivek Chandra Jaiswal, Advocate versus STATE ….. Respondent Through Mr. Akshai Malik, APP
SUDHIR KUMAR ….. Appellant Through Mr. K.B. Andley, Sr. Advocate with Mr. M. Shamikh, Advocate versus STATE ….. Respondent Through Mr. Akshai Malik, APP
SUNITA GUPTA, J.
1. These criminal appeals are directed against the impugned judgment dated 10th May, 2011 in CC No. 64/2011 arising out of FIR 61/2003 u/s 7/13
Prevention of Corruption Act, 1988
(hereinafter referred to as PC Act) and Section 120 B IPC registered at Police Station Anti Corruption Branch, Delhi passed by learned Special Judge-07, (Central), Delhi vide which Dinesh Chand Gupta(A-1) was convicted for offence u/s 7 and 13(2) r/w Section 13(1)(d) of PC Act and accused Sudhir Kumar(A-2) was convicted for offence u/s 7 of PC Act. Vide order dated 11th May, 2011, A-1 was sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs.10,000/- for offence punishable u/s 7 of the PC Act and in default to undergo simple imprisonment for a period of three months. He was further sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs.10,000/- for offence punishable u/s 13(2) r/w Section 13(1)(d) of PC Act, in default to undergo simple imprisonment for a period of three months. Both the sentences were ordered to run concurrently. A-2 was sentenced to undergo rigorous imprisonment for a period of two years and a fine of Rs.10,000/- for offence punishable u/s 7 of PC Act in default to undergo simple imprisonment for a period of three months.
2. Aggrieved by the decision of learned Special Judge, separate appeals bearing No. 639/2011 and 656/2011 were preferred by the appellants. Since both the appeals arise out of a common judgment, hence they are taken up together.
3. The case of the prosecution as unfolded during the trial is that the complainant-Ajay Gupta was employed as an accountant earlier in Delhi Automobiles situated in Jhandewalan and was terminated from his service in the year 1985 for which he filed a case in the Labour Court which was decided in his favour and order for issuance of Recovery Certificate was passed by the Assistant Labour Officer on 23rd June, 2003. Since the said Certificate was not issued, complainant met A-2, the dealing Clerk in his office who demanded bribe of Rs.1000/- for delivering the said Recovery Certificate. The first instalment of Rs.500/- was to be paid on 9th December, 2003. However, he was against giving bribe so he approached the office of Anti Corruption Branch and gave a written complaint regarding the demand of bribe by A2 from him. The said written complaint was given to PW8- Inspector B.S. Yadav in the presence of PW4 Sh. Ghanshyam.
4. The complainant had brought 5 government currency notes (hereinafter referred to as ‘G.C. Notes’) in the denominations of Rs.100/- each and handed over the same to Inspector B.S. Yadav who noted down the serial number of the said G.C. Notes. Thereafter phenolphthalein powder was applied to the said GC Notes and the same were recorded in the pre-raid proceedings and its effect was demonstrated. The tainted GC Notes were given to the complainant-Ajay Kumar who kept the same in left pocket of his jacket. As per instructions, panch witness- Ghanshyam-PW4 was directed to remain close to the complainant-Ajay Kumar to overhear conversation between the complainant and the appellant. He was further instructed to give a signal to the raiding party by hurling his hand over his head when the bribe amount had actually been given by the complainant.
5. At about 12:30 pm, Inspector BS Yadav along with complainant-Ajay Gupta, panch witness-Ghanshyam, Inspector M.A. Salam, SI Vijay, Constable Raju and other members of the raiding party left Anti Corruption Branch for 5, Shamnath Marg in a Govt. vehicle and reached there at about 12:45 pm. The complainant and panch witness were reminded about the instructions given to them in the pre-raid proceedings and were sent inside 5 Shamnath Marg. Inspector BS Yadav along with members of raiding party followed them and took suitable positions. At about 1:00 pm, on receipt of pre determined signal from panch-witness, Inspector B.S. Yadav along with raiding team reached inside the office of the Labour Court and on inquiry, panch witness informed him that A-1 had demanded and accepted the bribe amount of Rs.500/- from his left hand and kept the same in his left pant pocket. The raid officer disclosed his identity as Inspector of Anti Corruption Branch. On instructions of raiding officer, GC Notes of Rs.500/- were recovered from the pant pocket of A-1. The serial number of the recovered GC notes were got compared with those notes in pre-raid proceedings. The wash of left side pant pocket of A-1 was taken in colourless solution of Sodium Carbonate which turned into pink. Post-raid proceedings Ex.PW4/D were done. A-1 was arrested. After completing investigation, charge sheet was submitted against both the appellants.
6. Prosecution examined as many as 12 witnesses to substantiate its case. All the incriminating evidence was put to both the appellants while recording their statement u/s 313 Cr.P.C. A-1 admitted that on 9th December, 2003, he was employed as UDC in Labour Department and was posted in the office of Labour Commissioner, 5, Shamnath Marg, Delhi, however, he denied the case of prosecution. According to him, he never demanded, accepted or obtained any bribe from the complainant as there was no occasion or opportunity to demand any bribe from him. The alleged tainted money is planted upon him by the officials of the Anti-Corruption Branch. All the proceedings were conducted in the Anti Corruption Branch and no documents were prepared at the spot. He was apprehended and was immediately taken to Anti-Corruption Branch and thereafter in the lock up of police station Civil Lines.
7. A-2 admitted that he was working as UDC, Labour Department on 9 th December, 2003 and was posted in the office of Labour Commissioner, 5, Shamnath Marg. However, he denied having demanded any illegal gratification from the complainant and submitted that he was sick on 8 th December, 2003 and was advised rest by the doctor from 8th December, 2003 to 19th December, 2003. Medical certificate and fitness certificate were submitted by him in the office when he joined the office.
8. A-1 examined D1W1-Mahesh Chand in support of his defence whereas A2 examined DW1 Jagdish Prasad and DW2 Naresh Kumar Sharma to prove that he was on medical leave from 8th December, 2003 to 19th December, 2003.
9. After appreciation of evidence and considering the submissions made by the counsel for the parties, the learned Trial Court, vide impugned judgment held both the appellants guilty of the offence and sentenced them accordingly. Feeling dissatisfied, present appeals have been preferred by them.
10. Learned counsel for the appellant Dinesh Chand Gupta submitted that the complaint made by the complainant to the Anti-Corruption Branch was against Sudhir Kumar, however, Sudhir Kumar was transferred one day prior to this complaint. Moreover, complainant was not examined as he had died during the interregnum. It was not the part of the job of the appellant to issue recovery certificate. Moreover, he had joined the office only on the date of incident. Even as per the testimony of the prosecution witnesses, there was no demand from the side of the appellant and no recovery was affected from him. In fact, the same was planted upon him which is apparent from the fact that there is inconsistencies in the testimony of panch-witness who deposed that he took money from right hand and put the same in the right pocket whereas according to the Investigating Officer of the case, he dipped left hand in the solution and the left pocket of his pant. In view of these inconsistencies, it is not proved that any recovery was effected from this appellant. In any case, demand and recovery are sine qua non for proving the offence under the Prevention of Corruption of Act and in the instant case, absolutely no evidence has come to show that any demand was made by this appellant.
11. Reliance was placed on